'Hacker Madness' Strikes Idaho Judge

"The fundamental problem in this case is that the judge didn't seem to understand that there are positive uses of the word hacker," said Chris Soghoian, a senior policy analyst with the ACLU's Project on Speech, Privacy and Technology. "It's a term that some people use to describe themselves with pride, and it's a term that other government agencies have recognized has positive connotations."

By John P. Mello Jr.
Oct 29, 2013 8:50 AM PT

A federal judge in Idaho appears to have had a fit of hacker madness.

In a case involving a former employee and his bosses over software for protecting the nation's critical infrastructure from cyberattacks, federal district court Judge B. Lynn Winmill
found the employee's privacy rights could be ignored because he was a self-proclaimed hacker.

The employee, Corey Thuen, formerly worked for Battelle Energy Alliance, which developed the cyberdefense software called "Sofia" for the U.S. Department of Energy's Idaho National Laboratory.

After being terminated by Battelle, Thuen set up his own shop, Southfork Security, which began marketing a cybersecurity program that looked remarkably like Sophia. What's more, Southfork's software, called "Visdom," was going to be open source, so anyone could look at it -- including potential intruders.

Tipping Point

Battelle, which had already licensed Sophia to a company that intended to market a proprietary version of the software, moved against Southfork. It commenced proceedings that excluded Thuen -- "ex parte," in legal speak -- to block the former employee from releasing his open source software and to copy the alleged pilfered code from the hard drive where it resided.

Battelle argued that the ex parte proceedings were necessary because if Thuen were tipped off, he'd destroy any evidence of his wrongdoing. Judge Winmill bought that argument, largely because on Southfork's website, Thuen declares, "We like hacking things and we don't want to stop."

"A well-known characteristic of hackers is that they cover their tracks," Winmill wrote. "This makes it likely that defendant Thuen will delete material on the hard drive of his computer that could be relevant to this case."

Although allowing Battelle to copy Thuen's hard drive was a serious invasion of privacy and not a standard remedy, Winmill said the action was warranted in this case.

"The tipping point for the Court comes from evidence that the defendants -- in their own words -- are hackers," the judge wrote. "By labeling themselves this way, they have essentially announced that they have the necessary computer skills and intent to simultaneously release the code publicly and conceal their role in that act. And concealment likely involves the destruction of evidence on the hard drive."

Hacker Madness

Winmill's notion that anyone who calls himself a hacker has to be a bad actor is one that's growing in popularity among folks who find the Bill of Rights an annoying barrier to advancing their agenda. It's something the Electronic Frontier Foundation calls the "Hacker Madness" strategy.

"Using it, the prosecution portrays actions taken by someone using a computer as more dangerous or scary than they actually are by highlighting the digital tools used to a nontechnical or even technophobic judge," EFF Legal Director Linda Cohn wrote at the organization's website.

The Southfork case appears to fit into the Hacker Madness pattern.

"The court took a pretty extraordinary step by relying on stereotype and hyperbole rather than really digging into the facts," EFF Staff Attorney Hanni Fakhoury told TechNewsWorld.

"We would hope that courts look beyond the scary word hacker and really assess whether the defendant is likely to cause the harm the plaintiff claims," he added.

Part of the cause of Hacker Madness is semantic.

"The fundamental problem in this case is that the judge didn't seem to understand that there are positive uses of the word hacker," Chris Soghoian, principal technologist and a senior policy analyst with the
ACLU's Project on Speech, Privacy and Technology, told TechNewsWorld.

"It's a term that some people use to describe themselves with pride," he continued, "and it's a term that other government agencies have recognized has positive connotations."

Problems in the Southfork case were exacerbated by the one-sided aspect of the proceedings.

"There was no one to inform the court about the actual use of the word hacker in the technical community," Soghoian said. "The judge only heard from one side, and that side had an incentive to make the individual sound scary."

Payday Spam Tops 3Q

SMS spam was dominated by financially charged messages -- including those for payday loans -- during the quarter ending Sept. 30, according to a report released last week by
Cloudmark.

Nearly two-thirds (65 percent) of all mobile spam during the period contained financially charged messages about everything from payday loans, loan insurance and bank accounts to debt relief and accident compensation.

"Spam and scam messages attempting to seduce (or scare) with the explicit mention of money seem to currently hold a great deal of traction with SMS spammers," Cloudmark observed in its 3Q13 global Messaging Threat Report.

With 35 percent of SMS spam volumes during the period, payday scams were by far the most popular during the quarter, even though a crackdown on the industry in the UK weeded out 19 of the 50 top players in that market.

"During the first four or five months of the year, bank phishing was the main thing we were seeing," he continued. "That has died down, and payday loans have really taken off."

Breach Diary

Oct. 21.
The NSA made 70.3 million recordings of telephone data of French citizens from Dec. 10, 2012, to Jan. 13, 2013, says a report based on information leaked by Edward Snowden. The report is inaccurate, says NSA.

Oct. 21. Protected health information for approximately 729,000 patients was compromised following the theft of two laptops from a secure office, reports AHMC Healthcare, of Alhambra, Calif. There is no evidence yet that the information has been accessed or used in any manner, according to AHMC.

Oct. 23. German government announces U.S. intelligence agencies may have monitored mobile phone calls of its chancellor, Angela Merkel. United States claims monitoring is not taking place.

Oct. 23. Fifty-five percent of consumers would change their bank if it suffered a data breach; 46 percent, their insurance companies; 42 percent, their drug store or pharmacy; and 40 percent, their doctor or dentist, reveals Harris Interactive study sponsored by Cintas.

Oct. 24. The United States monitored phone conversations of 35 world leaders in 2006, says report based on information leaked by Edward Snowden. The snooping produced "little reportable intelligence" because the personal phones were not used to discuss sensitive matters, according to the report published in The Guardian.

Oct. 24. U.S. Attorney in Los Angeles charges 12 members of criminal group who allegedly raked in hundreds of thousands of dollars in ATM skimming scam.

Oct. 24. Schnuck Markets, of St. Louis, settles class action lawsuit resulting from data breach in which 2.4 million payment card numbers were compromised. Under the terms of the settlement, which is capped at US$1.6 million, the company pays customers up to $10 for each card that was compromised and had fraudulent charges posted to it. Injured parties are also being reimbursed, up to $175, for incidental expenses connected to the breach, such as bank overdraft charges and time spent dealing with the breach.